15.  The applicant was born in 1963 and lives in Senden, Germany.
16.  In the application, the applicant referred to his declaration made on 6 April 2006 for the purpose of the proceedings before the US District Court for the Eastern District of Virginia (see paragraphs 62 and 63 below).
17.  On 31 December 2003 the applicant boarded a bus in Ulm, Germany, with a view to visiting Skopje in order, as he stated, “to take a short vacation and some time off from a stressful home environment”. At around 3 p.m., he arrived at the Serbian/Macedonian border crossing at Tabanovce. A suspicion arose as to the validity of his recently issued German passport. A border official checked his passport and asked him about the purpose of his trip and the length and location of his intended stay. A Macedonian entry stamp dated 31 December 2003 was affixed to his passport. On that occasion, his personal belongings were searched and he was questioned about possible ties with several Islamic organisations and groups. The interrogation ended at 10 p.m. Accompanied by men in civilian clothes who were armed, he was driven to a hotel, which later research indicated was the Skopski Merak Hotel in Skopje (“the hotel”). Upon his return to Germany, the applicant recognised, through photographs available on the hotel’s website, the hotel building, the room where allegedly he had been held and one of the waiters who had served him food during his detention in the hotel.
18.  The applicant was taken to a room on the top floor of the hotel. During his detention at the hotel, he was watched by a team of nine men, who changed shift every six hours. Three of them were with him at all times, even when he was sleeping. He was interrogated repeatedly throughout the course of his detention. He was questioned in English despite his limited proficiency in that language. His requests to contact the German embassy were refused. On one occasion, when he stated that he intended to leave, a gun was pointed at his head and he was threatened with being shot. After seven days of confinement, another official arrived and offered him a deal, namely that he would be sent back to Germany in return for a confession that he was a member of al-Qaeda.
19.  On the thirteenth day of his confinement, the applicant commenced a hunger strike to protest against his continued unlawful detention. He did not eat for the remaining ten days of his detention in the former Yugoslav Republic of Macedonia. A week after he had commenced his hunger strike, he was told that he would soon be transferred by air back to Germany.
20.  On 23 January 2004 at around 8 p.m., the applicant was filmed by a video camera and instructed to say that he had been treated well, that he had not been harmed in any way and that he would shortly be flown back to Germany. Handcuffed and blindfolded, he was put in a car and taken to Skopje Airport.
21.  Upon arrival, still handcuffed and blindfolded, he was initially placed in a chair, where he sat for one and a half hours. He was told that he would be taken into a room for a medical examination before being transferred to Germany. Then, two people violently pulled his arms back. On that occasion he was beaten severely from all sides. His clothes were sliced from his body with scissors or a knife. His underwear was forcibly removed. He was thrown to the floor, his hands were pulled back and a boot was placed on his back. He then felt a firm object being forced into his anus. As stated by the applicant’s lawyers at the public hearing of 16 May 2012, of all the acts perpetrated against the applicant that had been the most degrading and shameful. According to the applicant, a suppository was forcibly administered on that occasion. He was then pulled from the floor and dragged to a corner of the room, where his feet were tied together. His blindfold was removed. A flash went off and temporarily blinded him. When he recovered his sight, he saw seven or eight men dressed in black and wearing black ski masks. One of the men placed him in an adult nappy. He was then dressed in a dark blue short-sleeved tracksuit. A bag was placed over his head and a belt was put on him with chains attached to his wrists and ankles. The men put earmuffs and eye pads on him and blindfolded and hooded him. They bent him over, forcing his head down, and quickly marched him to a waiting aircraft, with the shackles cutting into his ankles. The aircraft was surrounded by armed Macedonian security guards. He had difficulty breathing because of the bag that covered his head. Once inside the aircraft, he was thrown to the floor face down and his legs and arms were spread-eagled and secured to the sides of the aircraft. During the flight he received two injections. An anaesthetic was also administered over his nose. He was mostly unconscious during the flight. A Macedonian exit stamp dated 23 January 2004 was affixed to the applicant’s passport.
22.  According to the applicant, his pre-flight treatment at Skopje Airport, “most likely at the hands of the special CIA rendition team”, was remarkably consistent with a recently disclosed CIA document describing the protocol for the so-called “capture shock” treatment (see paragraph 124 below).
23.  Upon landing, the applicant disembarked. It was warmer outside than it had been in the former Yugoslav Republic of Macedonia, which was sufficient for him to conclude that he had not been returned to Germany. He deduced later that he was in Afghanistan and that he had been flown via Baghdad.
24.  After landing in Afghanistan, the applicant was driven for about ten minutes, then dragged from the vehicle, slammed into the walls of a room, thrown to the floor, kicked and beaten. His head and neck were specifically targeted and stepped upon. He was left in a small, dirty, dark concrete cell. When he adjusted his eyes to the light, he saw that the walls were covered in Arabic, Urdu and Farsi handwriting. The cell did not contain a bed. Although it was cold, he had been provided with only one dirty, military-style blanket and some old, torn clothes bundled into a thin pillow. Through a window at the top of the cell, he saw the red, setting sun. Later he understood that he had been transferred to a CIA-run facility which media reports have identified as the “Salt Pit”, a brick factory north of the Kabul business district that was used by the CIA for detention and interrogation of some high-level terror suspects.
25.  During his confinement, he was interrogated on three or four occasions, each time by the same man, who spoke Arabic with a south Lebanese accent, and each time at night. His interrogations were accompanied by threats, insults, pushing and shouting. His repeated requests to meet with a representative of the German government were ignored.
26.  In March 2004 the applicant, together with several other inmates with whom he communicated through cell walls, commenced a hunger strike to protest about their continued confinement without charge. As a consequence of the conditions of his confinement and his hunger strike, the applicant’s health deteriorated on a daily basis. He received no medical treatment during this time, although he had requested it on several occasions.
27.  On 10 April 2004, the thirty-seventh day of his hunger strike, hooded men entered his cell, pulled him from his bed and bound his hands and feet. They dragged him into the interrogation room, sat him on a chair and tied him to it. A feeding tube was then forced through his nose to his stomach and a liquid was poured through it. After this procedure, the applicant was given some canned food, as well as some books to read.
28.  Following his force-feeding, the applicant became extremely ill and suffered very severe pain. A doctor visited his cell in the middle of the night and administered medication, but he remained bedridden for several days. Around that time, the applicant felt what he believed to be a minor earthquake. In this connection, the applicant submitted the “List of significant earthquakes of the world in 2004”, issued by the US Geological Survey on 6 October 2005. According to this document, there was one earthquake on 5 April 2004 in the Hindu Kush region, Afghanistan.
29.  On 16 May 2004 the applicant was visited by a German speaker who identified himself only as “Sam”. The latter visited the applicant three more times prior to his release.
30.  On 21 May 2004 the applicant began his second hunger strike.
31.  On 28 May 2004 the applicant, blindfolded and handcuffed, was led out of his cell and locked in what seemed to be a shipping container until he heard the sound of an aircraft arriving. On that occasion, he was handed the suitcase that had been taken from him in Skopje. He was told to change back into the clothes he had worn upon his arrival in the former Yugoslav Republic of Macedonia and was given two new T-shirts, one of which he put on. He was then taken to the waiting aircraft, wearing a blindfold and earmuffs, and was chained to his seat there. “Sam” accompanied him on the aircraft. He said that the plane would land in a European country other than Germany, but that the applicant would eventually continue on to Germany.
32.  When the aircraft landed, the applicant, still blindfolded, was placed in the back seat of a vehicle. He was not told where he was. He was driven in the vehicle up and down mountains, on paved and unpaved roads. The applicant was aware of men getting out of the car and then of men getting in. All of the men had Slavic-sounding accents, but said very little. Eventually, the vehicle was brought to a halt. He was taken from the car and his blindfold was removed. His captors gave him his belongings and passport, removed his handcuffs and directed him to walk down the path without turning back. It was dark and the road was deserted. He believed he would be shot in the back and left to die. He rounded a corner and came across three armed men. They immediately asked for his passport. They saw that his German passport had no visa in it and asked him why he was in Albania without legal permission. He replied that he had no idea where he was. He was told that he was near the Albanian borders with the former Yugoslav Republic of Macedonia and Serbia. The men led him to a small building with an Albanian flag and he was presented to a superior officer. The officer observed the applicant’s long hair and long beard and told him that he looked like a terrorist. He was then driven to Mother Teresa Airport in Tirana. He was guided through customs and immigration control without inspection and put on a plane to Frankfurt, Germany. An Albanian exit stamp was affixed to the applicant’s passport.
33.  On 29 May 2004 at 8.40 a.m. the applicant arrived at Frankfurt International Airport. He was about eighteen kilograms lighter than when he had left Germany, his hair was long and unkempt, and he had not shaved since his arrival in the former Yugoslav Republic of Macedonia. Immediately after arrival in Germany, the applicant met Mr M. Gnjidic, a lawyer practising in Ulm.
34.  In his written submissions, the applicant stated that he had not undergone any medical examination apart from the isotope analysis of his hair follicles (see paragraphs 56 and 57 below). At the public hearing, the applicant’s lawyers specified that the results of some medical examinations carried out upon his return to Germany had been submitted by the German public prosecutor to the European Parliament’s Fava Inquiry (see paragraphs 47-51 below). However, those results had not been submitted to the Court since they had not been conclusive as to the presence of any physical injury, given the long time that had elapsed since the incident at Skopje Airport. Furthermore, the applicant stated that he had been subjected to sophisticated interrogation techniques and methods, which had been specifically designed not to leave any evidence of physical ill-treatment.
35.  The 2007 Marty Report (see paragraph 46 below) noted that the applicant had asked for treatment at the treatment centre for torture victims in Neu-Ulm shortly after his return to Germany in 2004. However, it took until 2006 for Mr Gnjidic to obtain the required health-insurance funding agreement to start a course of limited treatment (seventy hours) at the centre, which had been considered insufficient both by Mr Gnjidic and by the therapist herself (see paragraph 296 of the 2007 Marty Report).
36.  The applicant also submitted a written statement of 5 January 2009 by Dr Katherine Porterfield, a senior psychologist at the Bellevue/NYU Program for Survivors of Torture, in which she had confirmed that the applicant had suffered from post-traumatic stress disorder and depression “most likely caused by his experience of capture and extensive maltreatment and abuse”. Dr Porterfield’s opinion was based on several telephone calls and two follow-up discussions with the applicant. She also advised him to visit a clinician in his community with the requisite expertise to help him. The applicant did not comply with that instruction. 1.  The position of the Government as noted in the reports adopted following certain international inquiries
(a)  Alleged secret detentions and unlawful inter-State transfers of detainees involving Council of Europe member States, Doc. 10957, 12 June 2006 (“the 2006 Marty Report”)
37.  On 13 December 2005 the President of the Parliamentary Assembly of the Council of Europe asked the Assembly’s Committee on Legal Affairs and Human Rights to investigate allegations of “extraordinary renditions” in Europe. Senator Dick Marty of Switzerland was appointed as Special Rapporteur. On 12 June 2006 the Assembly published the 2006 Marty Report. It set out, on the basis of meetings that took place between 27 and 29 April 2006, the position of the Macedonian authorities regarding the applicant’s case. It stated, inter alia:
“3.1.3.1.  The position of the authorities 106.  The ‘official line’ of the Macedonian Government was first contained in a letter from the Minister of Interior ... to the Ambassador of the European Commission ... dated 27 December 2005. In its simplest form, it essentially contains four items of information ‘according to police records’: first, Mr El-Masri arrived by bus at the Macedonian border crossing of Tabanovce at 4 p.m. on 31 December 2003; second, he was interviewed by ‘authorised police officials’ who suspected ‘possession of a falsified travel document’; third, approximately five hours later, Mr El-Masri ‘was allowed entrance’ into Macedonia, apparently freely; and fourth, on 23 January 2004, he left Macedonia over the border crossing of Blace into Kosovo.
... 108.  The President of the Republic ... set out a firm stance in the very first meeting with the European Parliament delegation, providing a strong disincentive to any official who may have wished to break ranks by expressing an independent viewpoint: ‘Up to this moment, I would like to assure you that I have not come across any reason not to believe the official position of our Ministry of Interior. I have no additional comments or facts, from any side, to convince me that what has been established in the official report of our Ministry is not the truth.’ 109.  On Friday 28 April the official position was presented in far greater detail during a meeting with ... [the] Head of the UBK, Macedonia’s main intelligence service, at the time of the El-Masri case. [He] stated that the UBK’s Department for Control and Professional Standards had undertaken an investigation into the case and traced official records of all Mr El-Masri’s contact with the Macedonian authorities. The further details as presented by [the Head of the UBK] are summarized as follows:
Mr El-Masri arrived on the Macedonian border on 31 December 2003, New Year’s Eve. The Ministry of Interior had intensified security for the festive period and was operating a higher state of alert around the possible criminal activity. In line with these more intense activities, bus passengers were being subjected to a thorough security check, including an examination of their identity documents.
Upon examining Mr El-Masri’s passport, the Macedonian border police developed certain suspicions and decided to ‘detain him’. In order not to make the other passengers wait at the border, the bus was at this point allowed to continue its journey.
The objective of holding Mr El-Masri was to conduct an interview with him, which (according to [the Head of the UBK]) was carried out in accordance with all applicable European standards. Members of the UBK, the security and counter-intelligence service, are present at all border points in Macedonia as part of what is described as ‘Integrated Border Management and Security’. UBK officials participated in the interview of Mr El-Masri.
The officials enquired into Mr El-Masri’s reasons for travelling into the country, where he intended to stay and whether he was carrying sufficient amounts of money. [The Head of the UBK] explained: ‘I think these were all standard questions that are asked in the context of such a routine procedure – I don’t think I need to go into further details.’
At the same time, Macedonian officials undertook a preliminary visual examination of Mr El-Masri’s travel documents. They suspected that the passport might be faked or forged – noting in particular that Mr El-Masri was born in Kuwait, yet claimed to possess German citizenship.
A further passport check was carried out against an Interpol database. The border point at Tabanovce is not linked to Interpol’s network, so the information had to be transmitted to Skopje, from where an electronic request was made to the central Interpol database in Lyon[s]. A UBK official in the Analytical Department apparently made this request using an electronic code, so the Macedonian authorities can produce no record of it. Mr El-Masri was made to wait on the border point while the Interpol search was carried out.
When it was established that there existed no Interpol warrant against Mr El-Masri and no further grounds on which to hold him, he was released. He then left the border point at Tabanovce, although Macedonian officials were not able to describe how. Asked directly about this point in a separate meeting, the Minister of Interior ... said: ‘we’re not able to tell you exactly what happened to him after he was released because it is not in our interest; after the person leaves the border crossing, we’re not in a position to know how he traveled further.’
The Ministry of Interior subsequently established ... that Mr El-Masri had stayed at a hotel in Skopje called the ‘Skopski Merak’. Mr El-Masri is said to have checked in on the evening of 31 December 2003 and registered in the guest book. He stayed for 23 nights, including daily breakfast, and checked out on 23 January 2004.
The Ministry then conducted a further check on all border crossings and discovered that on the same day, 23 January 2004, in the evening, Mr El-Masri left the territory of Macedonia over the border crossing at Blace, into the territory of Kosovo. When asked whether Mr El-Masri had received a stamp to indicate his departure by this means, [the Head of the UBK] answered: ‘Normally there should be a stamp on the passport as you cross the border out of Macedonia, but I can’t be sure. UNMIK [United Nations Administration Mission in Kosovo] is also present on the Kosovo border and is in charge of the protocol on that side ... My UBK colleague has just informed me that he has crossed the border at Blace twice in recent times and didn’t receive a stamp on either occasion.’
... 116.  What is not said in the official version is the fact that the Macedonian UBK routinely consults with the CIA on such matters (which, on a certain level, is quite comprehensible and logical). According to confidential information we received (of which we know the source), a full description of Mr El-Masri was transmitted to the CIA via its Bureau Chief in Skopje for an analysis ... did the person in question have contact with terrorist movements, in particular with [al-Qaeda]? Based on the intelligence material about Khaled El-Masri in its possession – the content of which is not known to us – the CIA answered in the affirmative. The UBK, as the local partner organisation, was requested to assist in securing and detaining Mr El-Masri until he could be handed over to the CIA for transfer.”
(b)  Council of Europe, Report by the Secretary General under Article 52 of the Convention on the question of secret detention and transport of detainees suspected of terrorist acts, notably by or at the instigation of foreign agencies (SG/Inf (2006) 5, 28 February 2006)
38.  On 21 November 2005 the Secretary General of the Council of Europe invoked the procedure under Article 52 of the Convention with regard to reports of European collusion in secret rendition flights. Member States were required to provide a report on the controls provided in their internal law over acts by foreign agents in their jurisdiction, on legal safeguards to prevent unacknowledged deprivation of liberty, on legal and investigative responses to alleged infringements of Convention rights and on whether public officials who had allegedly been involved in acts or omissions leading to such deprivation of liberty of detainees had been or were being investigated.
39.  On 17 February and 3 April 2006 the Government replied to this request. In the latter submission, the Government stated their position as regards the applicant’s case. They stated, inter alia:
“... As far as the case of Mr Khaled El-Masri is concerned, we would like to inform you that this case was examined by the Ministry of Internal Affairs, and the information about it was sent to the representatives of the European Commission in the Republic of Macedonia, to the Director for Western Balkans in the DG [Directorate General] Enlargement of the European Commission in Brussels and to members of the European Parliament as early as June 2005. ... [T]he Ministry of Internal Affairs of the Republic of Macedonia informs that, based on the police records on entry and exit at the State border of the Republic of Macedonia, Mr Khaled El-Masri arrived, by bus, at the Tabanovce border crossing from the State Union of Serbia and Montenegro on 31 December 2003 at 4 p.m. presenting a German passport. Suspecting possession of a forged travel document, the competent police officers checked the document and interviewed Mr Khaled El-Masri at the border crossing. A check in the Interpol records was also carried out which showed that no international arrest warrant had been issued for Mr El-Masri. Mr Khaled El-Masri was allowed to enter the Republic of Macedonia on 31 December 2003 at 8.57 p.m. According to the police records, Mr Khaled El-Masri left the Republic of Macedonia on 23 January 2004 at the Blace border crossing to the State Union of Serbia and Montenegro (on the Kosovo section).”
40.  The Government confirmed their version of events as outlined above (see paragraphs 37 and 39 above). They denied that the applicant had been detained and ill-treated by State agents in the hotel, that he had been handed over to CIA agents, and that the latter had ill-treated him at Skopje Airport and transferred him to a CIA-run prison in Afghanistan. In their submission, the applicant had freely entered, stayed in and left the territory of the respondent State. The only contact with State agents had occurred on 31 December 2003, on the occasion of his entry into the respondent State, when enquiries had been undertaken regarding the validity of his passport. There had been no other contact with State agents during his entire stay in the respondent State. The enquiries by the Ministry of the Interior demonstrated that the applicant had stayed in the respondent State by his own choice and free will between 31 December 2003 and 23 January 2004, when he had freely left the State through the Blace border crossing.
41.  In support of their argument, they submitted a copy of the following documents: extracts from the official border-crossing records for Tabanovce and Blace; an extract from the hotel guest book in which the applicant had been registered as a guest occupying room number 11 between 31 December 2003 and 22 January 2004; and two letters of February 2006 in which the hotel’s manager, firstly, had communicated to the Ministry of the Interior the names of six persons who had been on duty in the hotel at the relevant time and, secondly, had denied that any person had ever stayed in the hotel involuntarily. It was further specified that the person whose photograph was on the hotel’s website (see paragraph 17 above) was Mr Z.G., who could be found in the hotel. They also produced a letter of 3 February 2006 in which the Macedonian Ministry of Transport/Civil Aviation Administration had informed the Ministry of the Interior that on 23 January 2004 a Boeing 737 aircraft flying from Palma de Mallorca (Spain), registered as flight no. N313P, had been given permission to land at Skopje Airport, that the same aircraft had received permission (at 10.30 p.m.) to take off on the same day to Kabul (Afghanistan), and that at 2.25 a.m. on 24 January 2004 permission had been given for that aircraft to fly to Baghdad (Iraq). Furthermore, the Government filed a copy of the applicant’s hotel bills which, according to them, he had paid in cash. Lastly, they provided a copy of a police record of the applicant’s apprehension at the Tabanovce border crossing on 31 December 2003. As specified in the record, the applicant had been held between 4.30 p.m. and 9.30 p.m. The record does not state the reasons for his apprehension, but it contains an incomplete handwritten note that he was apprehended on the basis of “tel. no. 9106 of 8 December 2003”.
42.  There have been a number of international inquiries into allegations of “extraordinary renditions” in Europe and the involvement of European governments. The reports have referred to the applicant’s case.
43.  The 2006 Marty Report (see paragraph 37 above) stated, inter alia:
“A.  Draft resolution
... 7.  The facts and information gathered to date, along with new factual patterns in the process of being uncovered, indicate that the key elements of this ‘spider’s web’ have notably included: a worldwide network of secret detentions on CIA ‘black sites’ and in military or naval installations; the CIA’s programme of ‘renditions’, under which terrorist suspects are flown between States on civilian aircraft, outside of the scope of any legal protections, often to be handed over to States who customarily resort to degrading treatment and torture; and the use of military airbases and aircraft to transport detainees as human cargo to Guantánamo Bay in Cuba or to other detention centres.
... 11.  Attempts to expose the true nature and extent of these unlawful operations have invariably faced obstruction or dismissal, from the United States and its European partners alike. The authorities of most Council of Europe member States have denied their participation, in many cases without actually having carried out any inquiries or serious investigations.
... 2.7.1.  CIA methodology – how a detainee is treated during a rendition
...
... Collectively, the cases in the report testify to the existence of an established modus operandi of rendition, put into practice by an elite, highly-trained and highly-disciplined group of CIA agents ...
... 287.  Whilst hard evidence, at least according to the strict meaning of the word, is still not forthcoming, a number of coherent and converging elements indicate that secret detention centres have indeed existed and unlawful inter-State transfers have taken place in Europe. ...
...”
44.  Skopje Airport was categorised in the 2006 Marty Report as a “one-off pick-up point”, that is, a point from which one detainee or one group of detainees was picked up for rendition or unlawful transfer, but not as part of a systemic occurrence.
45.  As to the applicant’s case, the 2006 Marty Report stated, inter alia:
“3.  Specific examples of documented renditions 92.  We spoke for many hours with Khaled El-Masri, who also testified publicly before the Temporary Committee of the European Parliament, and we find credible his account of detention in Macedonia and Afghanistan for nearly five months.
... 102.  Mr El-Masri’s account is borne out by numerous items of evidence, some of which cannot yet be made public because they have been declared secret, or because they are covered by the confidentiality of the investigation under way in the office of the Munich prosecuting authorities following Mr El-Masri’s complaint of abduction. 103.  The items already in the public domain are cited in the afore-mentioned memorandum submitted to the Virginia court in which Mr El-Masri lodged his complaint:
•  Passport stamps confirming Mr El-Masri’s entry to and exit from Macedonia, as well as exit from Albania, on the dates in question;
•  Scientific testing of Mr El-Masri’s hair follicles, conducted pursuant to a German criminal investigation, that is consistent with Mr El-Masri’s account that he spent time in a South-Asian country and was deprived of food for an extended period of time;
•  Other physical evidence, including Mr El-Masri’s passport, the two T-shirts he was given by his American captors on departing from Afghanistan, his boarding pass from Tirana to Frankfurt, and a number of keys that Mr El-Masri possessed during his ordeal, all of which have been turned over to German prosecutors;
•  Aviation logs confirming that a Boeing business jet owned and operated by defendants in this case [a US-based corporation, Premier Executive Transportation Services, Inc., and operated by another US-based corporation, Aero Contractors Limited], then registered by the FAA [US Federal Aviation Administration] as N313P, took off from Palma, Majorca, Spain on January 23, 2004; landed at ... Skopje Airport at 8:51 p.m. that evening; and left Skopje more than three hours later, flying to Baghdad and then on to Kabul, the Afghan capital [a database of aircraft movements, compiled on the basis of information obtained from various sources, was attached to the 2006 Marty Report];
•  Witness accounts from other passengers on the bus from Germany to Macedonia, which confirm Mr El-Masri’s account of his detention at the border;
•  Photographs of the hotel in Skopje where Mr El-Masri was detained for 23 days, from which Mr El-Masri has identified both his actual room and a staff member who served him food;
•  Geological records that confirm Mr El-Masri’s recollection of minor earthquakes during his detention in Afghanistan;
•  Evidence of the identity of ‘Sam’, whom Mr El-Masri has positively identified from photographs and a police line-up, and who media reports confirm is a German intelligence officer with links to foreign intelligence services;
•  Sketches that Mr El-Masri drew of the layout of the Afghan prison, which were immediately recognisable to another rendition victim who was detained by the US in Afghanistan;
•  Photographs taken immediately upon Mr El-Masri’s return to Germany that are consistent with his account of weight loss and unkempt grooming.
... 113.  One could, with sufficient application, begin to tease out discrepancies in the official line. For example, the Ministry of Interior stated that ‘the hotel owner should have the record of Mr El-Masri’s bill’, while the hotel owner responded to several [e]nquiries, by telephone and in person, by saying that the record had been handed over to the Ministry of Interior.
... 125.  All these factual elements indicate that the CIA carried out a ‘rendition’ of Khaled El-Masri. The plane in question had finished transferring another detainee just two days earlier and the plane was still on the same ‘rendition circuit’. The plane and its crew had spent the interim period at Palma de Mallorca, a popular CIA staging point. The physical and moral degradation to which Mr El-Masri was subjected before being forced aboard the plane in Macedonia corresponds with the CIA’s systematic ‘rendition methodology’ described earlier in this report. The destination of the flight carrying Mr El-Masri, Kabul, forms a hub of CIA secret detentions in our graphic representation of the ‘spider’s web’.
... 127.  It is worth repeating that the analysis of all facts concerning this case points in favour of the credibility of El-Masri. Everything points in the direction that he was the victim of abduction and ill-treatment amounting to torture within the meaning of the term established by the case-law of the United Nations Committee against Torture ...”
(b)  Secret detentions and illegal transfers of detainees involving Council of Europe member States: second report, Doc. 11302 rev., 11 June 2007 (“the 2007 Marty Report”)
46.  In his report of 11 June 2007, Senator Marty stated, inter alia:
“5.  Some European governments have obstructed the search for the truth and are continuing to do so by invoking the concept of ‘State secrets’. Secrecy is invoked so as not to provide explanations to parliamentary bodies or to prevent judicial authorities from establishing the facts and prosecuting those guilty of offences ... The same approach led the authorities of the former Yugoslav Republic of Macedonia to hide the truth and give an obviously false account of the actions of its own national agencies and the CIA in carrying out the secret detention and rendition of Khaled El‑Masri.
... 273.  We believe we have now managed to retrace in detail Mr El-Masri’s odyssey and to shed light on his return to Europe: if we, with neither the powers nor resources, were able to do so, why were the competent authorities unable to manage it? There is only one possible explanation: they are not interested in seeing the truth come out.
... 275.  ... We were able to prove the involvement of the CIA in Mr El-Masri’s transfer to Afghanistan by linking the flight that carried him there – on the aircraft N313P, flying from Skopje (the former Yugoslav Republic of Macedonia) to Baghdad (Iraq) to Kabul (Afghanistan) on 24 January 2004 – to another known CIA detainee transfer on the same plane two days earlier, thus establishing the first ‘rendition circuit’. ... 276.  Upon Mr El-Masri’s arrival in Afghanistan, he was taken to a CIA secret detention facility near Kabul and held in a ‘small, filthy, concrete cell’ for a period of over four months. During this period the CIA discovered that no charges could be brought against him and that his passport was genuine, but inexplicably kept Mr El‑Masri in his squalid, solitary confinement for several weeks thereafter.
... 279.  Today I think I am in a position to reconstruct the circumstances of Mr El‑Masri’s return from Afghanistan: he was flown out of Kabul on 28 May 2004 on board a CIA-chartered Gulfstream aircraft with the tail number N982RK to a military airbase in Albania called [Bezat-Kuçova] Aerodrome.
... 314.  The ‘official version’ of Mr El-Masri’s involuntary stay in the former Yugoslav Republic of Macedonia has definitely become utterly untenable ...”
47.  On 18 January 2006 the European Parliament set up a Temporary Committee on Extraordinary Rendition and appointed Mr Claudio Fava as Rapporteur with a mandate to investigate the alleged existence of CIA prisons in Europe. The Fava Inquiry held 130 meetings and sent delegations to the former Yugoslav Republic of Macedonia, the United States of America, Germany, the United Kingdom, Romania, Poland and Portugal.
48.  It identified at least 1,245 flights operated by the CIA in European airspace between the end of 2001 and the end of 2005. During its visit to the former Yugoslav Republic of Macedonia, the Inquiry met with high-ranking officials.
49.  On 6 July 2006 the European Parliament adopted a Resolution on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (2006/2027(INI), doc. P6_TA(2006)0316), which stated, inter alia:
“19.  [The European Parliament] condemns the abduction by the CIA of the German national, Khaled [El-Masri], who was held in Afghanistan from January to May 2004 and subjected to degrading and inhuman treatment; notes further the suspicion – not yet allayed – that Khaled [El-Masri] was illegally held before that date, from 31 December 2003 to 23 January 2004, in the former Yugoslav Republic of Macedonia and that he was transported from there to Afghanistan on 23-24 January 2004; considers the measures that the former Yugoslav Republic of Macedonia claims to have taken to investigate the matter to be inadequate;
... 42.  Condemns the fact that the German national, [Khaled] El-Masri, was held illegally in Afghanistan for more than four months in 2004; deplores the reluctance of the authorities of the former Yugoslav Republic of Macedonia to confirm that El‑Masri was in Skopje and was probably being held there before his rendition to Afghanistan by CIA agents;
...”
50.  On 30 January 2007 the final Report on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (2006/2200(INI), doc. A6-0020/2007) was published. Noting the lack of thorough investigation by the respondent State, the Report stated, inter alia:
“136.  [The European Parliament] condemns the extraordinary rendition of the German citizen Khaled El-Masri, abducted at the border crossing Tabanovce in the former Yugoslav Republic of Macedonia on 31 December 2003, illegally held in Skopje from 31 December 2003 to 23 January 2004 and then transported to Afghanistan on 23-24 January 2004, where he was held until May 2004 and subjected to degrading and inhuman treatment;
... 138.  Fully endorses the preliminary findings of Munich Public Prosecutor Martin Hofmann that there is no evidence on the basis of which to refute Khaled El-Masri’s version of events;
...”
51.  The Report also emphasised that “the concept of ‘secret detention facility’ includes not only prisons, but also places where somebody is held incommunicado, such as private apartments, police stations or hotel rooms, as in the case of Khaled El-Masri in Skopje”. 3.  United Nations Human Rights Committee, Concluding Observations on the former Yugoslav Republic of Macedonia, 3 April 2008, UN Doc. CCPR/C/MKD/CO/2
52.  In the course of the periodic review of the respondent State’s compliance with the International Covenant on Civil and Political Rights conducted by the United Nations Human Rights Committee during its March to April 2008 session, the latter “noted the investigation undertaken by the State Party and its denial of any involvement in the [applicant’s] rendition notwithstanding the highly detailed allegations as well as the concerns [raised by the Marty and Fava Inquiries]”. The United Nations Human Rights Committee made the following recommendation:
“14.  ... the State Party should consider undertaking a new and comprehensive investigation of the allegations made by Mr Khaled El-Masri. The investigation should take account of all available evidence and seek the cooperation of Mr [El‑Masri] himself ...”
53.  This recommendation was supported by the Commissioner for Human Rights of the Council of Europe in his report published on 11 September 2008 (Council of Europe Commissioner for Human Rights, Thomas Hammarberg, “Report on visit to the former Yugoslav Republic of Macedonia, 25-29 February 2008”).
54.  On 9 April 2008 the applicant filed a petition with the Inter-American Commission on Human Rights. On 23 August 2009 the Commission transmitted the petition to the US government for comments. No further information has been provided in respect of these proceedings.
55.  On an unspecified date in 2004 the Munich public prosecutor’s office opened an investigation into the applicant’s allegations that he had been unlawfully abducted, detained, physically and psychologically abused and interrogated in the former Yugoslav Republic of Macedonia and Afghanistan. According to the applicant, a number of investigative steps were taken, including an examination of eyewitnesses who confirmed that the applicant had travelled to the former Yugoslav Republic of Macedonia by bus at the end of 2003 and that he had been detained shortly after entering that State.
56.  Furthermore, a radioactive isotope analysis of the applicant’s hair was carried out. An expert report of 17 January 2005 stated, inter alia:
“... it is very likely that the changes observed in the enclosed isotopic signatures [of the applicant’s hair] indeed correspond to [the applicant’s] statements ...”
57.  According to the First Committee of Inquiry of the German Bundestag (see paragraphs 59-61 below), the radioisotope analysis also confirmed that the applicant had undergone two hunger strikes.
58.  On 31 January 2007 the Munich public prosecutor issued arrest warrants for thirteen CIA agents on account of their involvement in the applicant’s alleged rendition. The names of the people sought were not made public. The identities of the CIA agents were allegedly given to the German prosecutor by the Spanish authorities, which had uncovered them in the course of their investigation into the use of Spanish airports by the CIA.
(b)  German parliamentary inquiry
59.  On 7 April 2006 the German Bundestag (Federal Parliament) appointed the First Committee of Inquiry of the Sixteenth Legislative Period (“the Committee of Inquiry”) to review the activities of the secret services. Over a period of investigation of 3 years, the Committee of Inquiry held a total of 124 sessions, 7 areas of investigation were addressed and a total of 141 witnesses were heard, including the applicant. The findings of the Committee of Inquiry were made public on 18 June 2009.
60.  The Committee of Inquiry’s report, which runs altogether to 1,430 pages, stated, inter alia:
“... Khaled El-Masri’s report on his imprisonment in Macedonia and in Afghanistan is credible as to the core facts of his detention in Macedonia and his transfer to Afghanistan, as well as his confinement there by United States forces. Doubts remain, however, about some specific aspects of his account.
The police investigations conducted by Swabian law-enforcement authorities and supported by the BKA [Bundeskriminalamt – German Federal Criminal Police] reaffirm Mr El-Masri’s account. His trip to Macedonia on 31 December 2003 was corroborated by witnesses. El-Masri’s account of the transfer from Macedonia to Afghanistan by United States forces is consistent with subsequent reports from other victims of the excesses of the ‘war on terror’ by the United States government at the time. The recorded movement of an American Boeing 737 of the presumed CIA airline ‘Aero-Contractors’ that flew from Majorca to Skopje on 23 January 2004 and continued on to Kabul matches the temporal information that Mr El-Masri provided on the duration of his confinement at a Macedonian hotel ...
All this supports the Committee’s profound doubts about the official Macedonian version of the events ... The Macedonian government continue to deny his detention at the hotel and his transfer to Afghanistan, calling this a defamatory media campaign. This official account of the events by Macedonia is clearly incorrect. Rather, it must be concluded that convincing evidence exists for El-Masri’s account of the course of his arrest and transfer outside the country ...” (p. 353)
61.  According to the report, doubts remained about the actual purpose of the applicant’s trip to Skopje and significant discrepancies were noted in his statements concerning his questioning in the former Yugoslav Republic of Macedonia and Afghanistan, in particular his suspicion as to the German background of “Sam”.
62.  On 6 December 2005 the American Civil Liberties Union (ACLU) filed a claim on behalf of the applicant in the US District Court for the Eastern District of Virginia against a number of defendants, including the former CIA Director George Tenet and certain unknown CIA agents. The claim alleged that the applicant had been deprived of his liberty in the absence of legal process and included a claim under the Alien Tort Statute (ATS) for violations of international legal norms prohibiting prolonged arbitrary detention and cruel, inhuman or degrading treatment.
63.  In May 2006 the District Court dismissed the applicant’s claim, finding that the US government had validly asserted the State secrets privilege. The District Court held that the State’s interest in preserving State secrets outweighed the applicant’s individual interest in justice. That decision was confirmed on appeal by the US Court of Appeals for the Fourth Circuit. In October 2007 the Supreme Court refused to review the case.
64.  In 2005 an internal inquiry was carried out into the applicant’s claims by the DCPS within the Ministry of the Interior. The applicant was not invited to produce any evidence before the DCPS, nor was he informed of the outcome of the investigation. The results of this inquiry were not communicated to him, but to the representatives of the European Union in the respondent State (see paragraph 39 above).
65.  After having been given notice of the instant case, the Government submitted a copy of two reports issued on 20 March 2006 and 10 April 2008 by the DCPS. Both reports were drawn up at the request of the Public Prosecutor’s Department of Organised Crime and Corruption, which had acted on two separate legal assistance requests, dated 9 May 2005 and 13 November 2007 respectively, from the Munich public prosecutor investigating the applicant’s criminal complaint in Germany. These reports reiterated the Government’s version of events as described above. They specified that the applicant, after having arrived at the Tabanovce border crossing on 31 December 2003, had been held between 4.30 p.m. and 9.30 p.m. in the official border premises and interviewed by the Macedonian police in connection with the alleged possession of a forged passport. After he had been released, he had stayed in the hotel, occupying room number 11. He had paid the hotel bill and had left the respondent State, as a pedestrian, at 6.20 p.m. on 23 January 2004 at the Blace border crossing. It was further specified that the then Head of the UBK, which had operated within the Ministry of the Interior, had never been rewarded by any foreign agency, including the CIA. It was concluded that no one, including the applicant, had ever been held in the hotel and interrogated by agents of the Ministry of the Interior.
66.  In the course of these inquiries, the Ministry of the Interior submitted to the Macedonian public prosecutor the documents indicated above (see paragraph 41).
67.  On 6 October 2008 the applicant, through his legal representative Mr F. Medarski, lodged a criminal complaint with the Skopje public prosecutor’s office against unidentified law-enforcement officials on account of his unlawful detention and abduction, offences punishable under Article 140 of the Criminal Code. The complaint also alleged the crime of torture or other inhuman or degrading treatment or punishment, punishable under Articles 142 and 143 of the Criminal Code. In support of his complaint, the applicant submitted a copy of his affidavit prepared for the purposes of his lawsuit in the United States of America and produced the following evidence: a copy of his passport; relevant extracts from the 2006 and 2007 Marty Reports and the Fava Inquiry; a copy of the aviation logs; a letter from the Skopje Airport authorities issued on 18 June 2008 (in reply to the applicant’s request for information) attesting that on 23 January 2004 a Boeing 737 aircraft registered by the FAA as N313P had landed at Skopje Airport without any passengers and that it had taken off on 24 January 2004 carrying only one passenger; a translated version of the expert report on the applicant’s hair; and sketches of the hotel room where the applicant had allegedly been detained. The photograph of the waiter who had allegedly served the applicant with food was not included in the submission to the public prosecutor because “the applicant had been unable to preserve a copy at the relevant time and the photograph was no longer available on the hotel’s website”. The applicant further complained that, while being held at the Tabanovce border crossing and in the Skopski Merak Hotel, he had been denied the right to contact his family, a lawyer of his own choosing or a representative of the German embassy.
68.  On 13 October 2008 the public prosecutor requested the Ministry of the Interior to investigate the applicant’s allegations, and in particular to provide concrete information regarding the events at the Tabanovce border-crossing point, the hotel and Skopje Airport in order to establish the truth.
69.  On 7 November 2008 the DCPS confirmed its previous findings and reiterated that all documents had already been submitted to the public prosecutor’s office (see paragraphs 41 and 65 above).
70.  On 18 December 2008 the public prosecutor rejected the applicant’s criminal complaint as unsubstantiated. Relying on the information submitted by the DCPS, the public prosecutor found no evidence that unidentified officials had committed the alleged crimes. According to the applicant, he was notified of that decision on 22 November 2010.
71.  The Government confirmed that, during the investigation, the public prosecutor had taken oral evidence from neither the applicant nor the personnel working in the hotel at the relevant time. Furthermore, no steps had been taken to establish the purpose of the landing of the aircraft mentioned in the letter issued by the Skopje Airport authorities on 18 June 2008 and attached to the applicant’s criminal complaint (see paragraph 67 above). In the Government’s view, this was because the inquiries made by the Ministry of the Interior had rebutted the applicant’s implausible allegations. Furthermore, during the 2006 inquiries the Ministry had already interviewed the persons working in the hotel at the time (see paragraphs 41 and 65 above). They had produced consistent evidence. However, there had been no record of those interviews.
72.  On 24 January 2009 Mr F. Medarski, on behalf of the applicant, brought a civil action for damages against the State and the Ministry of the Interior in relation to his alleged unlawful abduction and ill-treatment. The claim was based on sections 141 and 157 of the Obligations Act (see paragraphs 91 and 92 below). The applicant claimed 3 million Macedonian denars (equivalent to approximately 49,000 euros) in respect of the non-pecuniary damage resulting from his physical and mental pain and the fear that he would be killed during his detention. He reiterated his complaints that he had been denied the right to establish any contact with the outside world. The fact that his family had had no information about his fate and whereabouts had added to his mental suffering. That had amounted to a separate violation of his family life under Article 8 of the Convention. He further argued that such actions by State agents amounted to a violation of Articles 3, 5 and 8 of the Convention. Besides the evidence submitted in his criminal complaint (see paragraph 67 above), the applicant requested that the civil courts hear oral evidence from him and that a psychological examination be carried out.
73.  The Government informed the Court that sixteen hearings had so far been scheduled before the Skopje Court of First Instance. Many adjournments had been ordered owing to the absence of the applicant, who was imprisoned in Germany in relation to another offence. The case is still pending before the first-instance court.
74.  Mr H.K., who was the Macedonian Minister of the Interior between November 2002 and May 2004 and Prime Minister between June and November 2004, gave a written statement, certified by a notary public on 4 March 2010, in which he stated, inter alia:
“... 5.  I can affirm that it was during my tenure as Minister of the Interior, in December 2003 and January 2004, that Macedonian agents belonging to the UBK, acting under my authority as Minister and under the direct supervision of the then UBK Director, were engaged in detaining a man who was travelling with a German passport under the name of Khaled El-Masri. 6.  Mr El-Masri attempted to enter Macedonia on a bus from Germany on 31 December 2003. Macedonian police officials stopped him at the Tabanovce border crossing with Serbia. He was taken off the bus and held at the border crossing because the police suspected that his identity might be fraudulent. 7.  Our UBK liaisons told their US intelligence partners about Mr El-Masri’s arrival and were told that this man was suspected of involvement in Islamic terrorism. Macedonia received a valid international warrant from the US bearing Mr El-Masri’s name and an official request to detain this man. 8.  Acting in compliance with the US request, the Macedonian government agreed to hold Mr El-Masri until he could be handed over to the US authorities for further interrogation. As Minister of the Interior I was kept informed of the UBK’s actions and authorised them from the very beginning, although I was not involved at the operational level. I also liaised with our US counterparts on behalf of the Macedonian government. 9.  Mr El-Masri was held for a certain period in a location in Skopje, secretly and without incident, under the constant supervision of UBK agents. 10.  Mr El-Masri was not regarded as a threat to Macedonia and held no intelligence value for Macedonia’s purposes. If the decision had been ours alone, we would have released him. However, we acted faithfully on the warrant of our US counterparts, who indicated that they would send an aircraft and a team of CIA agents to Macedonia to take custody of Mr El-Masri and fly him out of the country. As time passed I indicated to our US counterparts that Macedonia would have to release Mr El-Masri if this rendition could not take place quickly. 11.  Ultimately, some time on 23 January 2004, Mr El-Masri was handed over to the custody of a CIA ‘rendition team’ at Skopje Airport and was flown out of Macedonia on a CIA-operated aircraft. 12.  The entire operation was thoroughly documented on the Macedonian side by UBK personnel in the Ministry of the Interior. This documentation was kept securely and ought to be available in the Ministry’s files. I cannot state exactly what the files contain but I know that the relevant materials were not destroyed while I was the Minister of the Interior. 13.  Some days after Mr El-Masri had been flown out of the country, I received a final report on the operation through the appropriate line of reporting in the Ministry of the Interior. In my recollection, the final report indicated that Macedonia had adhered exactly to the terms of a legitimate international warrant regarding Mr El‑Masri. Macedonia acted according to its domestic laws and procedures regulating the activities of the Ministry of the Interior. 14.  Macedonia’s status as a reliable partner in global counterterrorism was strengthened by the way we carried out this operation. Our US partners expressed great appreciation for Macedonia’s handling of the matter. 15.  I am aware that the US authorities ultimately released Mr El-Masri, without charge, after several further months of detention. I understand that Mr El-Masri’s situation resulted from a mistake. I maintain that if any mistake was made in Mr El‑Masri’s case, it was not Macedonia’s mistake, and I do not believe there was any intentional wrongdoing on the part of the Macedonian authorities. 16.  I am aware that Mr El-Masri has now taken his case to the European Court of Human Rights in Strasbourg. My statement is expressly and solely for the purposes of this Court’s deliberations on the application of Mr El-Masri, and may not be used in the pursuit of any investigations against individuals.
... 18.  I solemnly declare upon my honour and conscience that the evidence contained in this statement is the truth, the whole truth and nothing but this truth. ”
75.  Mr J.G.S. is a citizen of the United Kingdom. He works as a lawyer and investigator. Appointed as an adviser to Senator Dick Marty in the context of the Marty Inquiry and a member of the Fava Inquiry, he took part in fact-finding missions in the respondent State, attended meetings with the highest-level officials and contacted sources close to the Government and the intelligence services. He further discussed the applicant’s case with other relevant domestic and foreign government officials and non-governmental representatives. He also interviewed the applicant on several occasions in 2006, as well as other witnesses. At the Open Society Justice Initiative’s request, on 28 March 2011 he submitted an expert report running to sixty-two pages in which he detailed the factual findings of his investigations into the applicant’s case. The report was based on a “considerable amount of original testimonial, documentary and other physical evidence related to the applicant’s case”, most of which was obtained from people who had requested anonymity given the confidential and sensitive nature of the matter. According to the expert, “the Government has classified as ‘Top Secret’ all the documentation in its files that might help to shed light on the case” (see paragraph 21 of the report). He made repeated site visits of the Tabanovce border crossing, the hotel and Skopje Airport and interviewed “witnesses and other sources who participated in or experienced the[se] events at first hand”. In the report, the expert gave detailed information about: the applicant’s arrival in the respondent State; the chronological sequence of events at the Tabanovce border crossing and the actions taken by the Macedonian border officials with respect to the applicant; the UBK’s deployment to Tabanovce and the on-site interrogation of the applicant; the UBK’s liaison with the CIA; and the landing, route and timing of a CIA-operated flight which had been used for the applicant’s transfer from Skopje Airport. As noted in the report, after the arrival of the UBK agents at the Tabanovce border crossing, “the Macedonian authorities took meticulous and wide-ranging measures ... to conceal from scrutiny anything out of the ordinary – including deviations from Macedonian law and procedures – that might happen to Mr El‑Masri while held in Macedonian custody. I have been struck by the attention to detail I have learned about on the part of the Macedonian authorities, as they sought to cover up or interfere with almost every avenue of independent investigation into the truth of what happened” (see paragraph 141 of the report).
76.  The applicant submitted two reports containing the ECCHR’s observations on the report of the First Committee of Inquiry of the German Bundestag (see paragraphs 59-61 above), cables sent by the US embassy (see paragraph 77 below) and the arrest warrants issued by the Munich public prosecutor’s office (see paragraph 58 above).
77. The applicant submitted several diplomatic cables in which the US diplomatic missions in the respondent State, Germany and Spain had reported to the US Secretary of State about the applicant’s case and/or the alleged CIA flights and the investigations in Germany and Spain (cable 06SKOPJE105, issued on 2 February 2006; cable 06SKOPJE118, issued on 6 February 2006; cable 07BERLIN242, issued on 6 February 2006; cable 06MADRID1490, issued on 9 June 2006; and cable 06MADRID3104, issued on 28 December 2006). These cables were released by WikiLeaks (described by the BBC on 7 December 2010 as “a whistle-blowing website”) in 2010.